J. Mohapatra & Co & ANR Vs.
State of Orissa & ANR [1984] INSC 136 (10 August 1984)
MADON, D.P.
MADON, D.P.
BHAGWATI, P.N.
CITATION: 1984 AIR 1572 1985 SCR (1) 322 1984
SCC (4) 103 1984 SCALE (2)191
CITATOR INFO :
F 1985 SC1416 (101) RF 1986 SC 555 (6) F 1990
SC1480 (75)
ACT:
Education laws and rules-Books for general
reading in Schools and colleges libraries, and text books selection of by
administrative instructions-Challenge to the Constitution of Sub-Committee and
the method of selection adopted-Whether can be made by a person who has neither
submitted any book or by a person who has submitted his books for selection,
out of which a few books only has been selected-Doctrine of locus
standi-Justification of State's action in constituting a Committee-Doctrine of
bias-Whether an author-member can be a member of any such committee or subcommittee-Rule
of Doctrine of necessity, explained-Sufficiency of guidelines continued
Contained in-Resolution of the Government dated November 24, 1983-Guidelines
prescribed by the Supreme Court.
HEADNOTE:
Selection of text-books and books for reading
to be kept in school and college libraries is a matter of vital importance to
the imparting of proper education. Such selection must depend upon the ability
and fitness for the purpose of those who are charged with that responsibility.
In the State of Orissa, there was no
statutory rule or regulation prescribing the procedure for selection of books
for general reading to be kept in school and college libraries, except the
State Government's periodical administrative instructions in the form of
resolutions constituting committees namely, an Assessment Sub-Committee, a
Distribution Sub-Committee and a Purchase Committee to which Government
officials as well as non-officials were appointed as members. The procedure
followed was that each year the Member-Secretary of the Purchase Committee
would call upon publishers and authors by advertisements given in local
newspapers to submit books for consideration. The Assessment Sub-Committee
could than consider the books so submitted and thereafter recommend a list of
books which, according to it, were suitable for general reading by school and
college students. The Purchase Committee would consider the recommendations
made by the Assessment Sub-Committee prepares a final list and submit it for
approval to the State Government which could reject any book out of the list so
submitted without giving any reason. The decision of the State 323 Government
regarding the assessment, selection purchase and distribution of books was made
final.
The selection of the books for the years
1980, 1981 and 1982 was made in this fashion. Admittedly, some of the members
of the Assessment Sub-Committee were themselves authors of books and some of
the books written by them were selected and purchased. The Purchase Committee
restricted the list for the years 1980, 1981 and 1982 to 466 books out of 1,718
books submitted for selection, but as further funds became available the
Government decided to select more books and accordingly a committee constituted
under the Chairmanship of Director of Public Instruction (Schools), Orissa,
selected a supplementary list of 105 books out of the said 1,718 books which
had been submitted for selection.
Before further steps could be taken, in the
unprecedented fiords and cyclones of August/September 1982, number of schools
and colleges suffered in the calamity and the libraries of many schools and
colleges were washed away.
The Central Government thereupon, as part of
its relief programme for the State, gave grants to the State during February
and March, 1983 aggregating to Rs. 45 lakhs for the purchase of books for the
libraries of non-governmental schools and colleges and to be utilised before
June 1983.
Due to Paucity of time and delay in the
normal process of selection of books, the State Government took a decision or
April 5, 1983 to utilise the grant made by the Central Government by purchasing
books out of the books selected for the years 1980, 1981 and 1982 and the said
supplementary list of 105 books. In the meeting convened on April 13, 1983, to
consider the selection of books to be purchased, all the 466 books selected for
the years 1980, 1981 and 1982 together with the 105 supplementary lists of
books were approved.
Thereupon, the appellants who were publishers
filed a Writ Petition under Article 226 of the Constitution against the State
of Orissa and the Director of Public Instruction, Orissa to quash the list of
books selected for the years 1980, 1981 and 1982 and the State Government's
said decision with respect to purchasing books out of the cyclone and flood
relief grant made by the Central Government, inter alia on the ground of bias
on the part of some of the members of the Assessment Sub-Committee whose books were
submitted for selection. This Writ Petition was heard along with a similar Writ
Petition filed by the Orissa Publishers and Book Sellers Association. The High
Court by a common judgment delivered on August 10, 1983 dismissed both these
Writ Petitions. Hence the appeals by Special Leave of the Court.
Allowing the appeal, the Court 324 ^
HELD : 1. The law with respect to locus
standi has considerably advanced both in this country and in England and in the
case of public interest litigation it is not necessary that a petitioner should
himself have a personal interest in the matter. Merely by submitting books for
selection, of which some might have been selected, a person cannot be said to
have waived the objection which he may have to the constitution of the
committee which selects the books. Similarly, merely because a person does not
submit any book for selection, it cannot, be said that he is not a person
aggrieved. [331 E; D]
2. In the absence of any statutory rule or
regulation with respect to selection of books and the selection being made each
year as an administrative measure it was open to the State Government to change
both the constitution of the committee and sub-committees as also the procedure
for selecting books to be purchased. Since the procedure normally adopted by
the State Government would have taken more time than what the time bound grant
of the Central Government would have permitted, the State Government was
justified in convening the meeting on April 13, 1983 and selecting the books to
be purchased from the Central Government grant. [331 G-H] 3:1. Nemo judex in
causa sua, that is, no man shall be a judge in his own cause, is a principle
firmly established in law. Justice should not only be done but should
manifestly be seen to be done. It is on this principle that the proceedings in
courts of law are open to the public except in those cases where for special
reason the law requires or authorizes a hearing in camera. Justice can never be
seen to be done if a man acts as a judge in his own cause or is himself
interested in its outcome. The principle applies not only to judicial
proceedings but also to quasi- judicial and administrative proceedings. [332
G-H] A. K. Kraipak and others v. Union of India and others, [1970] 1. S.C.R.
457, followed.
3:2. A person who has written a book which is
submitted for selection either by himself or by his publishers, is interested
in the matter of selection and therefore an author-member should not be a
member of any such committee or sub-committee for several considerations namely
: (a) Authors stand to benefit financially in several ways by getting either
royalty from the publishers or by direct sales; (b) Though an author-member may
be only one of the members of the Assessment Sub-Committees and that the
ultimate decision of selection may rest with the State Government which may
reject any book out of the list of the approved books, normally the State would
be guided by the list of books approved by the Assessment Committee ; (c) The
author-member can certainly influence the minds of the other members against
selecting books by other authors in preference 325 to his own ; (d) Books by
some of the other members may also have been submitted for selection and there
can be between them a quid pro quo or, in other words you see that my book is
selected and in return I will do the same for you. In either case, when a book
of an author-member comes up for consideration, the other members would feel
themselves embrassed in frankly discussing its merits ; (e) Such author-member
may also be a person holding a high official position whom the other members
may not want to displease ;
and (f) Though it may be that the other
members may not be influenced by the fact that the book which they are
considering for approval was written by one of their members, whether they were
so influenced or not would, however, be a matter impossible to determine. It is
not, therefore, the actual bias in favour of the author-member that is material
but the possibility of such bias. [333 F-H;
334A-G] 4 : 1. The doctrine of necessity is,
however, an exception to the doctrine of bias, that no man shall be a judge in
his own cause. An adjudicator, who is subject to disqualification on the ground
of bias or interest in the matter which he has to decide, may be required to
adjudicate if there is no other person who is competent or authorized to
adjudicate or if a quorum cannot be formed without him or if no other competent
tribunal can be constituted. In such cases, the principal of natural justice
would have to give way to necessity for otherwise there would be no means of
deciding the matter and the machinery of justice or administration would break
down. [334 H; 335 A-B] The Judges v. Attorney-General for Saskatchewan, 53 The
Times Law Reports 464 (1937) quoted with approval.
4:2. In the instant case, the High Court
wrongly applied the doctrine of necessity to the author-member of the
Assessment Sub-Committee. Though the members of this Sub-Committee were
appointed by a Government resolution and some of them were appointed by virtue
of the official position they were holding, such as, the Secretary, Education
Department of the Government of Orissa, and the Director, Higher Education,
etc., there was, nothing to prevent those whose books were submitted for
selection from pointing out this fact to the State Government so that it could
amend its resolution by appointing a substitute or substitutes, as the case may
be. There was equally nothing to prevent such non-official author-members from
resigning from the committee on the ground of their interest in the matter.
[335 C-E] 5:1. The High Court, however, was justified in refusing to grant any
relief in respect of the books selected for the year 1980, 1981 and 326 1982
inasmuch as the books selected for those years had already been purchased.
Since a similar fait accompli stared at the Supreme Court not only in respect
of the books selected and purchased for those years, but also with respect to
the books selected to be purchased from the Central Government grant, in the
instant fase, the Court could lay down only certain guide-lines to be followed
in future in selecting not only books for libraries in educational institutions
but also in prescribing text-books and in constituting committees for these
purposes. The Supreme Court accordingly laid down such guidelines. [335 F- H]
5:2. However, the guide-lines laid down by a court can only ensure the
selection of worthwhile books. This must necessarily depend upon the social
consciousness and moral fibre of the members of the committee. Further, no
judgment of a court can eliminate the evil of behind-the scene influence. Here,
one must perforce trust the sense of responsibility of the members of the
committee in the discharge of the important duty with which they are entrusted.
[338 B-C] 6:1. Clause 8 of the Government resolution dated November 24, 1983,
issued after the grant of Special Leave Petition to Appeal does not satisfy the
principle of natural justice and fair play. Since several books would come up
for consideration before the committee, one or more of them by one of the
member and the other or others by some of the other members, mere
non-participation in the discussion by the member concerned or even his
withdrawing from the deliberations of the committee while his or her book or
books are being considered is not sufficient because the evil of quid pro quo
cannot be eliminated by such a resolution. Members deliberating would bear in
mind that the turn for selecting their books would also come and the concerned
member who had not participated or had withdrawn would not then be favourably
inclined to select their books.
[336 B; E-G] 6:2. Many a person falls a
victim to the disease called cacoethes scribendi. It would, therefore, be
unfair to prohibit publishers from submitting books for selection merely
because they had at one time published a book written by any one of the members
of the committee or sub-committee concerned with the selection of books. The
number of publishers is large but good publishers are few and such publishers
will, therefore, be publishing the majority of books. To lay down such a
guide-line would be to eliminate a large number of books which may be worthy of
selection.
[337 A-C]
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 10026 of 1983.
327 From the Judgment and Order dated the
10th August, 1983 of the Orissa High Court in O. J. C. No. 1239 of 1983.
Vinoo Bhagat for the appellants.
K. Parasaran, Attorney General and R. K.
Mehta for the respondents.
Bharati Anand for the respondent.
The Judgment of the Court was delivered by
MADON, J. The destiny of a nation rests with its youth.
As we shape its mind and mould its character,
so do we fashion our country's progress, prestige and prosperity.
Wordsworth truly said, "The Child is
father of the Man", and Alexander Pope was equally right in saying in the
first of his 'Moral Essays'-'Epistle I to Sir Richard Temple, Lord Cobham':
"Tis Education forms the common mind,
Just as the Twig is bent, the Tree's inclin'd." It is, therefore,
essential for a country to have a proper educational system. The general
pattern of education in our country is, however, the traditional one of
studying from prescribed text-books, attending lectures based on such books and
answering questions in examinations set from them.
The study of text-books is often supplemented
by reading books which are kept in school and college libraries. These books
may be on various subjects-literature, history, art, science, geography, and
even works of fiction. General reading is as essential for a student as it is
for any man, for it is reading which broadens the mind and widens the horizon.
It was for this reason that Bacon said in his essay, 'Of Studies',
"Reading maketh a full man", General reading is, therefore, as
important as studying from prescribed text-books if the students of today are
to become worthy citizens of tomorrow.
The selection of these books-both text-books
and books for general reading to be kept in school and college libraries-is
thus a matter of vital importance to the imparting of proper education. Such
selection must necessarily depend upon the ability and fitness for the purpose
of those who are charged with that responsibility.
This question has come up for our
consideration in this Appeal by Special Leave from the judgment and order of
the High Court of 328 Orissa dismissing, with no order as to costs, the
petition under Article 226 of the Constitution filed by the Appellants.
There does not exist any statutory rule or
regulation in the State of Orissa prescribing the method for selection of books
for general reading to be kept in school and college libraries. The State
Government, however, periodically issues administrative instructions in the
form of Government Resolutions constituting committees and laying down the
procedure for selecting books. Broadly speaking, three committees are
constituted, namely, an Assessment Sub- Committee, a Distribution Sub-Committee
and a Purchase Committee. Government officials as well as non-officials are
appointed as members on these committees and sub-committees.
Each year the State Government makes
available a specific sum for purchase of books for libraries to be distributed
among individual schools and colleges. The procedure followed is that each year
the Member-Secretary of the Purchase Committee calls upon publishers and
authors by advertisements given in local newspapers to submit books for
consideration. The Assessment Sub-Committee then considers the books so
submitted and thereafter recommends a list of books which, according to it, are
suitable for general reading by school and college students. The Purchase
Committee considers the recommendations made by the Assessment Sub-Committee
and prepares a final list. It is open to the State Government to reject any
book out of the list so submitted without giving any reason and the decision of
the State Government regarding the assessment, selection, purchase and
distribution of books is made final. Though a separate Government Resolution is
issued each year, by and large the same pattern and procedure are maintained
and only a few committee and sub-committee members are changed and new members
appointed in their place. The selection of books for the years 1980, 1981 and
1982 was made in this fashion.
Admittedly, some of the members of the
Assessment Sub- Committee were themselves authors of books and some of the
books written by them were selected and purchased. The annual grant sanctioned
by the State Government for this purpose for the years 1980, 1981 and 1982 was
Rs. 5,00,000.
So far as the year 1982 was concerned, this
annual grant fell short of the requirement by almost 50 per cent.
Accordingly the Purchase Committee restricted
the list of 466 books out of 1,718 books submitted for selection, but as
further funds became available the Government decided to select more books and
accordingly constituted a Committee under the Chairmanship of Director of
Public Instruction (Schools), Orissa.
329 This Committee selected a supplementary
list of 105 books out of the said 1,718 books which had been submitted for
selection.
There were unprecedented floods and cyclones
in the months of August and September 1982 and a large number of schools and
colleges suffered in this calamity and the libraries of many schools and
colleges were washed away. The Central Government thereupon, as part of its
relief programme for the State, gave grants to the State during February and
March 1983 aggregating to Rs. 45,00,000 for the purchase of books for the
libraries of non-governmental schools and colleges. This was a time-bound grant
to be utilized by June 1983. For this reason, the State Government felt that it
was not feasible to adopt for selection of books the procedure usually followed
as it took a considerable time and, therefore, took a decision on April 5,
1983, to utilize the grant made by Central Government in purchasing books out
of the books selected for the years 1980, 1981 and 1982 and the said
supplementary list of 105 books. Accordingly, a meeting was convened on April
13, 1983, to consider the selection of books to be purchased.
There is some controversy with respect to who
convened the said meeting, who were present at that meeting and what transpired
in that meeting, but we find it unnecessary to go into this controversy.
Suffice it to say that books out of those selected for the years 1980, 1981 and
1982 and the said supplementary list were selected at this meeting.
Thereupon the Appellants who are publishers
filed a petition under Article 226 of the Constitution against the State of
orissa and the Director of Public Instruction, Orissa, to quash the lists of
books selected for the years 1980, 1981 and 1982 and the State Government's
said decision with respect to purchasing books out of the cyclone and flood
relief grant made by the Central Government inter alia on the ground of bias on
the part of some of the members of the Assessment Sub-Committee whose books
were submitted for selection. This writ petition was heard along with a similar
writ petition filed by the Orissa Publishers and Book Sellers Association. The
High Court by a common judgment delivered on August 10, 1983, dismissed both
these writ petitions and made no order as to the costs thereof. It is against
this judgment and order of the Orissa High Court that the Appellants have
approached this Court by way of Appeal by Special Leave.
The High Court rested its decision on the
following five 330 grounds, namely:
(1) For the year 1980-81, the First
Appellants, a partnership firm, had not submitted any book pursuant to the
advertisement issued by the State Government. For the year 1981-82, it had
submitted twenty-four books out of which one was selected. For the year
1982-83, it had submitted twenty- nine books out of which six were selected. Having
submitted books for selection and after being either partially successful in
getting some books selected or having failed in getting books submitted by it
selected, the First Appellant could not impugn the selection of books on the
ground of bias on the part of the members of the Assessment Sub-Committee. The
Second Appellant had not submitted any book for selection pursuant to the
advertisement in this behalf issued by the State Government for any of the
years in question and, therefore, was not a "person aggrieved" by any
of the selections made for those years (2) Considering the exigency of the
situation, the procedure followed by the State Government in setting up a
committee for the selection to be made for purchase of books from the grant made
by the Central Government was neither arbitrary nor against public interest
inasmuch as the procedure usually followed was laid down only by executive
directions and was not a statutory procedure and could, therefore, be changed
by the State Government.
(3) The final decision approving the
selection of books was that of the State Government for it had the right to
reject any book recommended by the Assessment Sub-Committee and, therefore, the
fact that some members of the Assessment Sub-Committee had also submitted their
books for approval did not matter for the role played by an individual member
of the Assessment Sub-Committee was insignificant and did not and could not
influence the decision either of that Sub- Committee or of the State
Government.
(4) The presence of Government officials as
members of the Purchase Committee and the two Sub-Committees was required by
the Government Resolution constituting the Committees and Sub-Committees and
the fact that some of these Governmental officials had also submitted books for
selection could not invalidate the selection made on the ground of bias for the
doctrine of necessity applied in their case.
(5) No relief could be granted in respect of
the books selected 331 for the years 1980, 1981 and 1982 inasmuch as the books
selected for those years had already been purchased.
We are unable to follow the reasoning behind
the first ground upon which the High Court rested its decision. It appears to
us paradoxical that when a person has submitted books for selection, it is to
be said that he has waived the objection which he had to the constitution of
the Sub- Committee and that when a person had not submitted any books for
selection it is to be said that he is not a 'person aggrieved'. To say so would
be a contradiction in terms. If the reasoning of the High Court were correct,
the sequitur would be that nobody would be able to challenge any selection of
books, for a person who challenges the selection must either be one who has
submitted a book or books for selection or one who has not submitted any book
for selection. In our opinion, the High Court was not right in the view it
took. Merely by submitting books for selection of which some might have been
selected, a person cannot be said to have waived the objection which he may
have to the constitution of the committee which selects the books. Similarly,
merely because a person does not submit any book for selection, it cannot be
said that he is not a person aggrieved. Today, the law with respect to locus
standi has considerably advanced both in this country and in England and in the
case of public interest litigation it is not necessary that a petitioner should
himself have a personal interest in the matter. It is unnecessary to refer to
the decisions of this Court on the point or to dilate further upon it. We may,
however, mention that at the hearing of this Appeal before us this contention
was not raised on behalf of the Respondents.
So far as the second ground given by the High
Court for arriving at its decision is concerned, we are in agreement with the
view which it took. There were no statutory rules or regulations with respect
to selection of books and the selection was done each year as an administrative
measure.
It was, therefore, open to the State
Government to change both the constitution of the committee and sub-committees
as also the procedure for selecting books when books had to be purchased from
the grant given by the Central Government.
The grant given by the Central Government had
to be expended within a particular period. The procedure normally adopted by
the State Government would have taken more time than what the time-bound grant
of the Central Government would have permitted. The State Government was,
therefore, justified in setting up a committee for selecting books to be
purchased from 332 the Central Government grant in the manner in which it did.
There is, however, some controversy as
regards the fact whether any publishers were present at the meeting of that
committee. According to the Appellants, some publishers were present at that
meeting and took part in the deliberations.
According to the counter affidavit filed by
the President of the Orissa Publishers and Book-Sellers Association, a
representative of that Association was called in at the end of that meeting to
ascertain whether the said Association was prepared to shoulder the
responsibility for arranging the timely supply of books and the said
representative did not take part in the proceedings of the said meeting nor was
he present at the deliberations thereof. A copy of the minutes of the said
meeting which has been annexed to the Petition for Special Leave to Appeal
filed by the Appellants bears out this fact. According to the said minutes, it
was decided at the said meeting that the publishers would prepare a list of
books to be supplied to different schools in different lots within the amount
sanctioned for each category of schools and that the total number of books for
each title would be almost equal and that the publishers would submit the list
of such books for approval at the level of the directorate. It is further
recorded in the said minutes that the said Association would take the
responsibility of supplying the books in packets in the office of the concerned
authorities by the specified dates.
The urgency of the situation demanded that
the books which were selected should be available for supply and, therefore,
there could not be anything wrong in asking a representative of the said
Association to remain present.
It is, however, unnecessary to go further
into this controversy for the real question in this Appeal is of far greater
importance. That is the question of bias on the part of some of the members of
the Assessment Sub-Committee. This question has been answered against the
Appellants and forms the subject-matter of the third and fourth grounds on
which the High Court rested its decision. Nemo judex in causa sua, that is, no
man shall be a judge in his own cause, is a principle firmly established in
law. Justice should not only be done but should manifestly be seen to be done.
It is on this principle that the proceedings in courts of law are open to the
public except in those cases where for special reason the law requires or
authorizes a hearing in camera.
Justice can never be seen to be done if a man
acts as a judge in his own cause or is himself interested in its outcome. This
principle applies not only to judicial proceedings but also to quasi-judicial
and administrative proceedings. The position in law has been succinctly stated
in 333 Halsbury's Laws of England, Fourth Edition, Volume I, Para 68, as
follows :
"Disqualification for financial
interest-There is a presumption that any direct financial interest, however
small, in the matter in dispute disqualifies a person from adjudicating.
Membership of a company, association or other organization which is financially
interested may operate as a bar to adjudicating, as may a bare liability to
costs where the decision itself will involve no pecuniary loss." In the case
of A.K. Kraipak and others v. Union of India and Others,(1) a list of State
Forest Officers prepared by the Selection Board for appointment to posts in the
senior and junior scales in the Indian Forest Service was set aside by this
Court on the ground that the officiating Chief Conservator of forests, whose
name was placed at the top of the list, was a member of the Selection Board
even though he was not present at the time his name was considered for
selection and even though the Selection Board was a recommendatory body and the
list prepared by it was to be considered first by the Home Ministry and then by
the Union Public Service Commission by whom the final recommendations were to
be made. The Court held that the rule that no man should be a judge in his own
cause was a principle of natural justice and applied equally to the exercise of
qashi-judicial as well as administrative powers.
In hardly requires any argument to show that
a person who has written a book which is submitted for selection, either by himself
or by his publisher, interested in the matter of selection. Authors get their
books published by publishers or may themselves publish them. In either case,
they stand to benefit financially. In the first case, by getting royalty from
publishers and in the second case, by making profits on the sale of books if
the amount realized exceeds the cost of publication, or if the sales are not to
that extent, by reducing the cost incurred in the publication of the book. The
Appellants have filed statements showing the financial benefit which accrued to
those members of the Assessment Sub-Committee whose books were selected. To
give one instance from these statements, in the case of a member of the
Assessment Sub-Committee who was a Government official and whose books were
selected, books of the 334 aggregate value of Rs. 4,000 were purchased in the
year 1980, of the aggregate value of Rs. 6,500 in the year 1981, and of the
aggregate value of Rs. 72,500 in the year 1982.
It was contended in the counter affidavit
filed on behalf of the Respondents that the amount of royalty received by these
member-authors was not much. This fact is immaterial. The amount of royalty
depends on the agreement between the author and the publisher as also upon the
sale price of the book. The fact, however, remains that by the books being
selected and purchased for distribution to school and college libraries the
sales of those books had gone up and correspondingly the royalty received by
the author-members also went up and such author-members thus received financial
benefit. It is no answer to say that an author-member is only one of the
members of the Assessment Sub-Committee and that the ultimate decision rests
with the State Government which may reject any book out of the list of approved
books.
A similar argument was rejected by this Court
in Kraipak's case. The State Government would normally be guided by the list
approved by the Assessment Sub-Committee. Further, to say that such
author-member is only one of the members of the Assessment Sub-Committee is to
overlook the fact that the author-member can subtly influence the minds of the
other members against selecting books by other authors in preference to his
own. It can also be that books by some of the other members may also have been
submitted for selection and there can be between them a quid pro quo or, in
other words, you see that my book is selected and in return I will do the same
for you. In either case, when a book of an author-member comes up for
consideration, the other members would feel themselves embarrassed in frankly
discussing its merits. Such author-member may also be a person holding a high
official position whom the other members may not want to displease. It can be
that the other members may not be influenced by the fact that the book which
they are considering for approval was written by one of their members. Whether
they were so influenced or not is, however, a matter impossible to determine.
It is not, therefore, the actual bias in favour of the author-member that is
material but the possibility of such bias. All these considerations require
that an author-member should not be a member of any such committee or
sub-committee.
There is, however, an exception to the above
rule that no men shall be a judge in his own cause, namely, the doctrine of
necessity. An adjudicator, who is subject to disqualification on the 335 ground
of bias or interest in the matter which he has to decide, may be required to
adjudicate if there is no other person who is competent or authorized to
adjudicate or if a quorum cannot be formed without him or if no other competent
tribunal can be constituted. In such cases the principle of natural justice
would have to give way to necessity for otherwise there would be no means of
deciding the matter and the machinery of justice or administration would break
down.
Thus, in The Judges v. Attorney-General for
Saskatchewan,(1) the Judges of the Court of Appeal were held competent to
decide the question whether Judges of the Court of Appeal, of the Court of
King's Bench and of the District Courts of the Province of Saskatchewan were
subject to taxation under the Income-tax Act, 1932, of Saskatchewan on the
ground that they were bound to act exnecessitate. The doctrine of necessity
applies not only to judicial matters but also to quasi-judicial and
administrative matters. The High Court, however, wrongly applied this doctrine
to the author-members of the Assessment Sub-Committee. It is true, the members
of this Sub-Committee were appointed by a Government Resolution and some of
them were appointed by virtue of the official position they were holding, such
as, the Secretary, Education Department of the Government of Orissa, and the
Director, Higher Education, etc. There was, however, nothing to prevent those
whose books were submitted for selection from pointing out this fact to the
State Government so that it could amend its Resolution by appointing a
substitute or substitutes, as the case may be. There was equally nothing to
prevent such non-official author-members from resigning from the committee on
the ground of their interest in the matter.
So far as the fifth and last ground on which
the High Court rested its decision is concerned, it must be held that the High
Court was justified in refusing to grant relief on this ground in respect of
the books selected for the years 1980, 1981 and 1982. We are also faced with a
similar fait accompli as the High Court was, not only in respect of the books
selected and purchased for those years but also with respect to the books
selected and to be purchased from the Central Government grant because these
books have also by now been purchased and distributed among the various school
and college libraries. All that we can, therefore, do in this Appeal is to lay
down guide-lines which should be followed in the future in selecting not only
books for libraries in educational institutions but 336 also in prescribing
text-books and in constituting committees for these purposes.
It was, however, submitted on behalf of the Respondents
that it was not necessary for this Court to lay down any guide-lines inasmuch
as after the Special Leave to Appeal was granted in this case, the State
Government had issued a fresh Government Resolution dated November 24, 1983,
whereby it constituted a new Purchase Committee and Assessment Committee
consisting of Government officials and non- official members, clause (8) of
which Resolution satisfied the principles of fair play and natural justice by
eliminating the possibility of any author-member of the committee influencing
author-members in selecting his book.
Clause (8) of the said Resolution reads as
follows :
"No member of the Purchase/Assessment
Committee shall remain present in discussion while considering a book in which
he/she is interested as author/editor/publisher." In the alternative, it
was submitted that if the Court desires to lay down guide-lines, it should do
so by adopting clause (8) of the said Government Resolution dated November 24,
1983.
We are unable to accept either of the above
two submissions. Several books would come up for consideration before the
committee, one or more of them by one of the members and the other or others by
some of the other members. Mere non-participation in the discussion by the
member concerned or even his withdrawing from the deliberations of the
committee while his or her book or books are being considered is not sufficient
because the evil of quid pro quo cannot be eliminated by this. Members
deliberating would bear in mind that the turn for selecting their books would
also come and the concerned member who had not participated or had withdrawn
would not then be favourably inclined to select their books.
It was suggested on behalf of the Appellants
that in laying down the guide-lines we should provide that if a publisher has
published a book written by one of the members of the committee or
sub-committee concerned with the selection of books, such publisher should not
be permitted to submit any book for selection even though no book by that author-member
had been submitted for selection. It was urged that in such a case the
author-member would be favourably inclined to select or approve the book of
that publisher in order 337 to maintain good relations with him. We find this
suggestion to be unrealistic. Many a person falls a victim to that disease
which Jnvenal called cacoethes scribendi (the writer's itch), for as Byron said
in his 'English Bards and Scottish Reviewers' :
"'Tis pleasant, sure, to see one's name
in print;
A book's a book, although there's nothing in It
would, therefore, be unfair to prohibit publishers from submitting books for
selection merely because they had at one time published a book written by one
of the members of the committee or sub-committee concerned with the selection
of books The number of publishers is large but good publishers are few and such
publishers will, therefore, be publishing the majority of books. To lay down
such a guide-line would be to eliminate a large number of books which may be
worthy of selection.
In the light of the above discussion we lay
down the following guide-lines to be adopted by the State Government,
governmental authorities and all committees constituted for the selection to
textbooks as also books for libraries of educational institutions whether such
committee be called a committee or sub-committee or be described by some other
nomenclature :
(1) The committee should not consist merely
of Government officials or have a preponderance of Government officials on it,
for Government officials, with few exceptions, have by and large only
administrative experience. In addition to Government officials, therefore, the
committee should also consist of men eminent in the particular fields of
knowledge for which the books are to be selected. Non-official members should
not be appointed as a matter of political considerations or on party lines but
should be appointed only on merit.
(2) No member of the committee, a book
written or edited by whom is submitted either by himself or his publisher for
approval or selection; should continue to remain a member of the committee. If
he is a non-official member, he should submit his resignation from the
committee on this ground. If he is a Government official, he should intimate to
the Government or the authority appointing him on that committee the fact that
a book written or edited by him has been submitted for approval or selection
and the Government or the concerned authority should substitute in place 338 of
such member another person, whether official or non- official, none of whose
books has been submitted for approval or selection.
(3) No publisher of books or his
representative should be appointed a member of the committee or be allowed to
remain present at or participate in the deliberations of the committee.
The guide-lines we have laid down above are
not intended to be exhaustive but contain the bare essentials of what is
required. We are conscious that no guide-lines laid down by a court can ensure
the selection of really worthwhile books. This must necessarily depend upon the
social consciousness and moral fibre of the members of the committee.
Similarly, no judgment of a court can eliminate the evil of behind-the-scene
influence. Here, one must perforce trust the sense of responsibility of the
members of the committee in the discharge of the important duty with which they
are entrusted.
For the reasons mentioned above, we allow
this Appeal and direct the State of Orissa to amend suitably the Government
Resolution dated November 24, 1983, or to issue a fresh notification in
supersession of that notification, incorporating the guide-lines laid down by
us above, as expeditiously as possible and in any event before the next
selection of books is made, without affecting any selection already made.
In the particular facts and circumstances of
this case there will be no order as to the costs of this Appeal.
S.R. Appeal allowed.
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